ON PETITION FOR REHEARING A petition for rehearing has been filed herein. In *Page 408 the original opinion we discussed section 122-136, Rev. St. 1931, passed in 1901. That section provides in brief that whenever the board of control adjudicates the water of any stream or other body of water, the parties interested therein must present their claims, or they are barred, provided that if the water of any stream has been previously adjudicated, an appropriator therefrom must make his claim within one year or be barred. We held that plaintiffs, appropriators direct from the Little Laramie River, must be held barred from claiming any right other than that adjudicated in their favor in 1892 by the Board of Control. Counsel for plaintiffs, in their brief on rehearing, state: "If, therefore, the plaintiffs are bound by the rights decreed to them in that adjudication, the Development Company must also be bound, and it has no rights since it did not assert any claims within the year following the enactment of the 1901 act cited in the opinion of the court." Statements to the same effect, but in somewhat different form, are contained in a number of other places in the brief. The ingenuity of counsel seems to have hit upon a new point — at least it has never been put in the way in which it has been put now. A literal interpretation of the statute of 1901, seems at first blush to bear the meaning given it by counsel. Strict logic might lead to the result which they assert. But if we grant that the claim is strictly logical, then we are face to face with what Justice Cardoza has called a paradox of legal science. It has many times been pointed out that a proposition, if carried to its logical extreme, may lead to an absurdity. And we think that this would be true in the case at bar. The ultimate criterion is the intention of the legislature. Let us look at the practical situation. The character of claimants mentioned in the first part of the statute and those mentioned in the proviso are the same, so that we need but inquire as to what claimants are contemplated in the statute. We *Page 409 pointed out in Laramie Irrigation and Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235, that the legislature in the eighteen nineties made small appropriations of money for the board of control to adjudicate the water rights in the state, so the Board determined to go slowly and do the best possible under the circumstances. In conformity therewith, it decided that it could not afford to adjudicate all the waters of the Laramie River. It determined to limit itself, and start with one of the tributaries of that river — the Little Laramie. Now if it had been necessary for the appropriators of the main stream — the Big Laramie River — to come in and make their proof of their appropriations, if they wanted any rights in the waters of the Little Laramie, the very thing which the board sought to avoid would have been necessary to be done in order that the rights of appropriators from the main stream might be preserved, thus leading to an absurdity. The Board thought that they could first adjudicate the waters of the Little Laramie, and afterwards the waters of the Big Laramie, which latter would include rights in the Little Laramie. The law of 1901 was not in effect when the adjudication in 1892 was made. But what was done then illustrates the situation. There is no reason to think that the Board was not confronted with similar situations after 1901. In other words, if the contention of counsel is correct, the board had no power, after 1901, to adjudicate any part of a river, no matter how long it might be, but could only adjudicate the waters of a main stream and all its tributaries at the same time, in order to give appropriators direct from the main stream their rights. That is not reasonable, and we do not believe that the legislature when it passed the act of 1901 had that in mind. Hence we think that a more reasonable interpretation of that act is that the claimants therein contemplated are those who have made an appropriation *Page 410 direct from the stream, or part of a stream, which the board has undertaken to adjudicate. That becomes clearer when we consider the language of the proviso in the statute, that, if the board had heretofore adjudicated any stream, the appropriatorstherefrom should make their claim within one year after the passage of the act. The Development Company was more than an appropriator therefrom. Its appropriation was not so limited. It was an appropriator therefrom and of water from the main stream and its other tributaries which flowed into the main stream above its point of diversion as well. In other words, we may say that it was an appropriator of the water of Little Laramie River indirectly rather than directly, and indirect appropriators were not, it would seem, contemplated by the foregoing statute. In cases in which only the water of a tributary are adjudicated in the sense here mentioned, the appropriators of the main stream should, of course, be given an opportunity to contest the claims of direct appropriators. That opportunity seems to be given by section 122-112, Rev. St. 1931, but since the point is not involved herein, we need make no further comments thereon.
Moreover, the Development Company and other appropriators direct from the Big Laramie River — the main stream — did in fact, prior to 1901, make a claim to the waters of the Little Laramie River, when they filed their proof of appropriation with the Board of Control in connection with the adjudication of the waters of the Big Laramie and were given a right therein when the adjudication was made. But here again, counsel want us to adopt a literal construction of a term; they say that the Little Laramie was expressly excluded by the Board from the adjudication then made, and they complain because the court did not admit notices and other statements showing such exclusion, in evidence. The ruling was harmless. We *Page 411 may treat the situation as though these statements were in evidence. Counsel state that in view of such exclusion, "the decree of the Big Laramie stops at the mouth of the Little Laramie River so far as that tributary is concerned." A literal interpretation of some of the statements would, perhaps, lead to that conclusion. One of the statements offered in evidence was a certified copy of an order of the Board of Control "directing that the rights to the use of water from the Laramie River — the rights of which have already been adjudicated — should be adjudicated." One notice offered in evidence stated that "notice is hereby given that the State Engineer * * * will begin the survey and measurement of the ditches diverting water from the Laramie River, and all its tributaries, not heretofore adjudicated." Another stated: "The attention of all appropriators of water from the Laramie River and all its tributaries, except Little Laramie, is hereby called to" the fact that the time for making proof, etc., is set (for a day certain). All notices offered in evidence either related to the measurement of the stream or to the requirement of submission of proof of appropriation. The reason for the course pursued by the Board is plain and is clearly indicated by the first of the above mentioned notices. The Board, as stated in the above mentioned order, had already adjudicated the rights of the Little Laramie. Not a single person who was not a direct appropriator therefrom had filed a claim in that proceeding, or at least had received no award. No intention may, accordingly, be attributed to the Board of permanently excluding the latter from all rights therein. The main thing preceding an adjudication of a stream is to investigate the various diversion works of the different appropriators, determine the date when they were constructed, the capacity thereof, and of ditches, and the amount of water put to beneficial use, and take proofs thereof. All that had *Page 412 already been done, so far as the appropriators direct from the Little Laramie were concerned. It would have been useless to do that a second time. No measurements were necessary to be made along the Little Laramie so far as the appropriators of the Big Laramie were concerned. All the diversion works were located directly on the latter stream. The scope of the exclusion is determined by the reasons therefor and cannot be extended beyond them, as counsel would have us do. In other words, what was meant by excluding the Little Laramie — the tributary already adjudicated — was that the measurements above mentioned would not again be undertaken so far as that stream was concerned, and no further proofs were required to be submitted from the appropriators direct therefrom. It would have been more accurate if the notices had stated that the Little Laramie was excludedin so far as adjudications of that stream had already been made. But a mere verbal inaccuracy cannot have deceived any one. The facts were well known to all appropriators; the reasons for the exclusion must have been clear to all practical irrigators, and hence the scope of the exclusion must have been as apparent to them as it was to the Board. The appropriators direct from the Little Laramie should, it is true, have been given an opportunity to come in and object. But that does not in any way alter what we have already stated. The notices heretofore mentioned related only to measurements and proofs and affected only the appropriators other than those from the Little Laramie. It would not have been necessary, and indeed it would not have been advisable, to give notice asking the appropriators direct from the Little Laramie to come in and object, until the proofs above mentioned had all been filed. In fact, we are not at all certain that such notice was not given. See the notice of July 17, 1900, set out in Laramie Irr. Power Co. v. Grant, supra (44 Wyo. 406,13 P.2d 236), which *Page 413 we mentioned but did not construe in that case, and which counsel, for purposes of their own, did not introduce in evidence in this case along with other notices. When we wrote the opinion in the Grant case, and in the original opinion, we understood the notices excluding the Little Laramie River from the adjudication of the Big Laramie in the sense above mentioned, and we did not have the remotest idea that the understanding of counsel was otherwise until we were undeceived by the unequivocal language used in the brief before us. We think that the impression which we formerly received as to the meaning of the statements of exclusion is correct. It was not necessary, in the very nature of things, to state expressly that the adjudication of the waters of the Big Laramie included the waters of the Little Laramie in so far as the appropriators direct from the main stream were concerned. As the arms and legs are part of a man's body, so tributaries are a part of the main stream. The only difference is that legs and arms may be more easily severed from the body than tributaries may be severed from the main stream. It is not necessary for a man to stand on the house-top and proclaim that his arms and his legs are an integral part of his body. Neither is it necessary for one who makes an appropriation from a main stream to proclaim that he also makes a claim to the waters of a tributary. The act of appropriation constitutes a sufficient and continuous claim which is as effectual, under well-recognized rules of law (67 C.J. 1006), as if trumpeters were annually sent into the highways and by-ways along the tributary to announce it. And what applies in that connection to the claim made by the Development Company applies to the adjudication made by the Board.
Counsel have again argued the question of prescription at length. That no prescriptive title was obtained up to the time of the adjudication of the Little Laramie *Page 414 in 1892 was so clearly pointed out in the original opinion that we need not say anything more on that point. The only possible question is as to prescription since that time, if a prescriptive title may be obtained at all in this state, which we refused to decide. The court's finding of fact No. 8, set out in the original opinion, substantially was to the effect that no such prescriptive title was acquired. What counsel now ask us to do includes, in effect, that we should review that finding, and their contention includes the point that that finding was in fact erroneous and should have been broader. But they did not except to that finding, nor was an exception to the finding embraced within the motion for a new trial. It is generally held that in the absence of an exception, a finding of fact will not be reviewed by the appellate court. 3 C.J. 933; see also 3 C.J. 984, 1338, 1345. We may, however, say that the mere use of water, however long continued, does not give rise to a title by prescription. The plaintiffs were, in addition, bound to show an invasion in a substantial manner of the rights of the Development Company, and the extent of that invasion, during a continuous prescriptive period. 67 C.J. 950-52, 957. One great difficulty in the case is the indefiniteness of the testimony as to the shortage of water on the part of the Development Company. Even counsel in the brief now before us merely speak of "considerable shortage." To illustrate the testimony: One witness testified that he frequently went past the lands of the Development Company and thought that it was short of water. Another witness testified that from 1901 to 1932, the company was short thirty per cent of the time. Another witness stated that the company did not have sufficient water a great deal of the time, without stating the amount of shortage or the times. Another witness stated that "the water was almost always short the way he figured it." The witness Henry Mullen was asked as to the specific *Page 415 quantity of shortness and was unable to say. The only testimony, as we now recall, which tended to show any specific amount of shortage at all was that of the witness Gillespie. But even that, upon analysis, was defective in that regard. Moreover, counsel have wholly disregarded the fact that the Development Company had and has reservoirs, which must, probably, be taken into consideration in that connection. After again carefully going over the record, we do not think that we are justified in disregarding the finding of the court above mentioned, even though we ought to review it. Nor does the testimony, which counsel say the court erroneously excluded, help in any way. Some of it will be mentioned hereafter. It merely points to some shortage without the slightest indication of the amount.
The statement in Morris v. Bean, 146 Fed. 423, 434, seems to be apropos: "As to real estate the possession is easily discovered. It is susceptible of actual proof, but here it is not shown that either the complainant or the intervener were ever entirely deprived of water. During the flood time water always reached them. They had the use of it for a time, some years longer than others. Who can divine with definiteness just what amount of water the defendants used to the exclusion of the complainant or intervener, or how long it was used to their exclusion each year?"
Furthermore, the adverse use must have been with knowledge and acquiescence of the Development Company. 67 C.J. 947-950. A man ought not to be deprived of his property unless he knows that another claims it, and knowing it, acquiesces. 2 C.J. 76. These factors are the sine qua (quibus) non of prescription. They constitute, as it were, the negative element thereof, without which the positive elements have no force or effect and round which the latter revolve. Thus, if an owner interrupts a possession — causes it to be non-continuous — that shows that he does not acquiesce *Page 416 therein. Open and notorious possession is necessary so as to convey knowledge, and give the owner an opportunity to protect his rights — to determine whether he wants to acquiesce or not. It has often been stated that open and notorious possession gives rise to a presumption of knowledge. Kinney, Irrigation (2nd ed.) p. 1879; 67 C.J. 949-950. And the rule, generally speaking, doubtless is sound. Still, circumstances should have a bearing. A man who irrigated a garden which was situated so that it could not be readily observed from a highway did not, in Britt v. Reed,42 Or. 76, 70 P. 1029, acquire a title by prescription to the water used by him, though he used it for the prescriptive period. Proximity and distance and opportunity to know should have a bearing in determining whether a man knows or not, and knowing acquiesces. In the case at bar, the lands of the Development Company are situated scores of miles distant from the lands of those situated on the Little Laramie — probably approximately 100 miles away. The use of water is not as readily observed as the possession of a piece of land. So the question arises whether or not the presumption of knowledge should follow in this case from the mere open use of the water in question. No case in which the owner and the adverse user have lived at great distance from each other has been cited to us in which a prescriptive title has been upheld. Counsel have contented themselves with calling attention to the general rule, without pointing out its applicability in the case at bar. And in this connection should be borne in mind the fact that the state has officials to regulate the distribution of water. The statutes of this state seem to take from the appropriators the burden of keeping a constant watch on the appropriators above them. Water superintendents and water commissioners are appointed under our laws to do that. Sec. 122-203; Secs. 122-303-305, Rev. St. 1931. *Page 417 An appropriator has the right to presume not only that appropriators above them take only the amount of water to which they are entitled, but also that the officials who regulate and distribute the waters of the state do their duty.
And these statutes would seem to have a bearing also on the rule of acquiescence. The point is forcibly suggested by the record before us. Counsel complain that the court excluded testimony to the effect that witnesses were not allowed to answer questions as to the regulation of water or questions that witnesses had been told by the water commissioner that he was regulating the water because the Development Company, on account of shortage, requested it. Ignoring the point of hearsay, it would have shown shortage of water of an indefinite amount on the part of the Development Company, but it would also have shown that the company insisted upon its rights, and by appealing to the public officials, it used the method contemplated by statute to secure and protect its rights. And, according to the evidence, that method was regularly pursued during the course of many years. On its face, in any event, such an appeal completely negatives any acquiescence, and comes in direct conflict with any presumption or duty arising under the law to the contrary when the adverse possession is open and notorious. How the conflict shall be solved depends on the policy of the law. Two aspects may be considered in that connection: (a) The appeal to the public officials may be considered merely in the nature of a protest against any adverse use. Most of the cases hold such protest insufficient to stop the running of the statute of limitations. 2 C.J. 94-95; 67 C.J. 943. But the contrary rule has also been announced in connection with water rights and with easements. 67 C.J. 943; 19 C.J. 883. In determining which of these rules is the more consonant with the spirit of our water laws, it would seem *Page 418 that we should take into consideration the fact that the duty of officials to distribute water according to priority-rights is primary, and does not necessarily depend upon request. Hence arises the question whether under our laws, a prescriptive right should be able to be acquired when its basis lies in the fact that public officials have failed to do their duty. It is readily seen that if it can be, a water commissioner, in office long enough, may easily enable another to acquire such title. (b) The second aspect above mentioned is this: The bringing of a suit to interrupt adverse use is not the only method. One of the ways universally recognized to interrupt such adverse use is by self-help — by the rightful owner taking the water from the adverse user by physical force. But an appropriator is largely deprived of that method in this state under the provisions of Section 122-1205, Rev. St. 1931, which provides that "any person who shall wilfully open, close, change or interfere with any headgate or water box without authority" shall be guilty of a crime. Hence the query is pertinent whether or not an appeal to the proper public officials to distribute water according to priority, was intended as a substitute for self-help, and should, accordingly, aside from negative acquiescence, be held sufficient to interrupt any adverse use, particularly in view of the fact that a large appropriator located at the lower end of a long stream, might otherwise be compelled to be engaged in continuous litigation against one or another of the numerous appropriators above him who might from time to time attempt to deprive him of his rights. "Peace and concord," said Thomas Hobbes, "is the end of all law" — a thought applied to our water laws in several of our decisions. It may be necessary in the future to answer the points above suggested. We do not think that we are called on to do so now, although we should probably feel it *Page 419 necessary to do so before we could hold that plaintiffs acquired a title by prescription. We have mooted these matters as helping to indicate that the evidence to show a prescriptive title to water rights should, particularly in a case like that at bar, be clear and decisive, and we do not think that, contrary to the finding of the trial court, it is so in the case before us. See Scott v. Fruit Growers Supply Co., 202 Cal. 47, 258 P. 1095,1097.
Counsel argue again that the decrees of adjudication should not have been admitted in evidence, since the Development Company was not a party to the adjudication of the Little Laramie, and the plaintiffs were not a party to the adjudication of the Big Laramie. Again a number of cases are cited. As to the decree of the Little Laramie: The Development Company had an interest in the waters of the Little Laramie, as heretofore stated. Having such interest, it was entitled to show that the plaintiffs had no such claim to the water of that River as claimed by them. It was enabled to make such showing by the decree adjudicating the waters of that river, in view of the fact that that decree limited the rights of plaintiff. It is clear, then, that the decree was admissible in evidence. The fact that the Development Company was not a party to the decree is wholly immaterial on the point of the extent of the rights of plaintiff. The decree constitutes, as it were, the title-deed of the plaintiffs. They cannot, as we fully discussed in the original opinion, claim any more than it shows.
As to the admissibility in evidence of the Big Laramie decree: We should not have said anything further on the point, were it not for the fact, that seemingly counsel have not even now perceived the effect of the decision in the Grant case on the point again decided, in the original opinion, namely, that the adjudication in favor of the Development Company is prima facie correct. If it is prima facie correct, then, as a matter *Page 420 of course, it is admissible in evidence against plaintiffs and against anyone else claiming adversely to it; it is admissible against the world to show that the grantee therein has title to the water in question according to the terms thereof, and it is as effectual as any binding judgment can be, except as to him, not a party to the same adjudication, who can overcome the prima facie effect thereof. Plaintiffs in this case attempted to overcome that effect, but they failed in the attempt. That point, and the futility in that connection, is fully discussed in the original opinion, and we do not know what more to add.
Counsel deprecate the difficulties in which the appropriators of the Little Laramie River find themselves. It appears that these are caused first by reason of the laws of the state, and second by reason of the adjudication made in 1892. But the unfortunate situation ought not to be laid at the door of this court. However willing we might be to aid, we are compelled to accept the system of water-laws adopted by the legislature, and it is not our right, as it may be that of counsel, to attempt to whittle down the effect thereof, but we must give such construction to these laws as appears to be reasonable. We think we have done so, and that we have done our duty. Counsel also suggest that the water which returns to the stream should be taken into consideration. That point was considered in Wyoming v. Colorado, 298 U.S. 573, 581, and it was stated that while some of the water used returns to the stream, a material portion is lost by evaporation and other natural processes, and that there is no way of determining with even approximate certainty how much water actually returns. In any event, the point cannot be said to be involved in this case. Whatever questions might arise in that connection could not well be decided until after it is determined, with some degree *Page 421 of definiteness, how much of the water actually returns to the stream, and that, as a consequence, the Development Company is not injured to that extent.
We can see no good to be accomplished by a rehearing, and it is, accordingly, denied.
Rehearing denied.
RINER, Ch. J., and KIMBALL, J., concur.